ARGUMENT ANALYSIS

California law on sale of pork raises concerns about interstate moral disputes in a “balkanized” nation

A case about a California animal-welfare law became a springboard on Tuesday for the justices to explore how individual states might try to impose their moral views on their neighbors. As they considered the constitutionality of California’s Proposition 12, the justices wondered aloud how the case would affect hypothetical state efforts to ban products from out-of-state companies that employ unauthorized immigrants, forbid labor unions, or refuse to fund certain types of health care. 

Approved by California voters in 2018, Proposition 12 imposes minimum requirements for the confinement of breeding pigs that produce uncooked pork products for sale in the state. Critics argue that the law violates the Constitution by regulating the pork industry outside of California, but over two hours of oral argument revealed that the justices were conflicted. On one hand, some justices expressed concern that striking down Proposition 12 would lead to the invalidation of a wide range of laws in other states. But on the other hand, several justices worried aloud that allowing Proposition 12 to stand would prompt other states to deploy their own laws to air what Justice Elena Kagan called “policy disputes” – leading to a scenario, Kagan cautioned, in which states are “constantly at each other’s throats.”

Proposition 12 prohibits the sale in California of pork products when the seller knows or should know that the meat came from the offspring of a breeding pig (also known as a sow) that was confined “in a cruel manner.” This means, among other things, that sows must have at least 24 square feet of living space.

Arguing for the National Pork Producers Council and the American Farm Bureau Federation, which filed a lawsuit challenging Proposition 12 in 2019, lawyer Timothy Bishop told the justices that “California wants to change farming methods everywhere.” Proposition 12, Bishop stressed, violates a doctrine known as the dormant commerce clause – the idea that the Constitution’s grant over interstate commerce to Congress means that states cannot pass laws that discriminate against interstate commerce. In particular, Bishop explained, states cannot condition in-state sales on requiring out-of-state businesses to operate in a certain way, as Proposition 12 does here.

Kagan asked Bishop whether, under the same theory, a New York law requiring businesses that want to import firewood into the state to use certain pesticide would be invalid. Bishop responded that it would be, prompting Kagan to ask whether any state law that requires an out-of-state business to change production methods would be prohibited. Bishop’s answer: Yes.

Justice Amy Coney Barrett echoed Kagan’s concerns, suggesting that “there must be many, many state laws” that would impermissibly regulate out-of-state businesses under the challengers’ rule. But Deputy Solicitor General Edwin Kneedler, representing the Biden administration, which filed a brief supporting the challengers, reassured her that striking down Proposition 12 would not have a broader ripple effect. Addressing the firewood example, Kneedler explained that a state might have a legitimate interest in keeping out pests that might infect its own trees.

However, even more justices – including Kagan and Barrett – voiced worries that allowing Proposition 12 to stand might lead to internecine disputes among the states. “A lot of policy disputes,” Kagan told California Solicitor General Michael Mongan, “can be incorporated into laws like yours.” For example, she observed, California could implement laws requiring products to be manufactured using union labor, while Texas could implement a law prohibiting the use of union labor. “We live in a divided country,” Kagan, in which the “balkanization” that was a topic of concern for the drafters of the Constitution “is surely present.”

Barrett raised the same question. She asked Mongan whether California could “pass a law that said we’re not going to buy any pork from companies that don’t require all their employees to be vaccinated or from corporations that don’t fund gender-affirming surgeries.”

Left unspoken in the justices’ questions was any mention of abortion. But in the wake of the court’s June decision in Dobbs v. Jackson Women’s Health Organization, some experts believe the decision on Proposition 12 could affect states’ efforts to regulate abortions – such as a state ban on abortion pills mailed from other states.

Mongan pushed back on some of the hypotheticals about state laws that would condition the sale of products on a company’s general health care or labor practices. He told Barrett that Proposition 12 is “focused on the production of goods that are coming into” California, rather than on company-wide policies. “I think we would all recognize,” Mongan said, that it would be problematic if states can condition the sales of those products on restrictions of wholly unrelated out-of-state purchasers.”

But Justice Brett Kavanaugh pressed Mongan, telling him that his use of the phrase “wholly unrelated” “is doing a ton of work.” What about, Kavanaugh asked, “a law that says you can’t sell fruit in our state” if it is not harvested by people who have proper documentation to be in the United States? “Is that state law permissible? And if not,” Kavanaugh continued, “how is it different from this law?”

Justice Samuel Alito offered his own hypothetical to test the limits of the state’s theory. Could the pork-producing states decide that “turnabout is fair play,” he asked, and pass a law that targets the sale of products produced “almost exclusively” in California – for example, the sale of almonds that are grown using irrigation?

Justice Ketanji Brown Jackson also weighed in, in a question for Jeffrey Lamken, who represented the Humane Society of the United States. To what extent, she said, does California get to control how Iowa houses its sows? Why can’t California solve this problem some other way – for example, by segregating Iowa’s pork or requiring it to be labeled as coming from conditions to which the state objects? Why does California get to ban it?

The justices also struggled with what role, if any, the state’s moral objections to the manner in which sows are normally housed should play in their constitutional analysis. When the effect of a state policy on out-of-state sellers is identical, Jackson asked, “how do we draw the line based solely on” the state’s rationale?

Chief Justice John Roberts raised questions about which states’ views should dominate in a discussion about morality. Residents in pork-producing states like Iowa or North Carolina, Roberts posited, might believe that there “is a moral value in providing a low-cost source of protein” to others. But if Proposition 12 is upheld, Roberts suggested, “it’s California’s view of morality that prevails” because of the state’s dominant role in the U.S. economy. Isn’t that something, Roberts concluded, that courts should consider?

Kagan offered a possible solution to the dilemma facing the court. She noted that the dispute came to the Supreme Court before a trial on the merits, so at this early point in the litigation, courts must accept the challengers’ allegations in their complaint as true. At this stage, she stressed, even if a state’s moral interests in a law are something that courts should consider, the challengers’ complaint “alleges great costs to the pork industry.” Because the case is still at a preliminary stage, she said, isn’t the appropriate step for the court to send the case back for the lower court to balance the burden that Proposition 12 imposes on out-of-state commerce against the benefits to California?

A decision in the case is expected sometime next year.

This article was originally published at Howe on the Court.